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SZLHW v Minister for Immigration & Anor [2009] FMCA 51 (6 February 2009)
Last Updated: 12 February 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
SZLHW v MINISTER FOR
IMMIGRATION & ANOR
|
|
MIGRATION –
Application to review decision of Refugee Review Tribunal – whether bias
or apprehended bias – no jurisdictional
error – application
dismissed. |
|
First Respondent:
|
MINISTER FOR IMMIGRATION & CITIZENSHIP
|
|
Second Respondent:
|
REFUGEE REVIEW TRIBUNAL
|
|
Hearing dates:
|
21 May 2008, 1 August 2008, 26 September 2008
|
|
Date for Last Submission:
|
1 December 2008
|
REPRESENTATION
Counsel for the Respondent: |
Ms L Clegg
|
Solicitors for the Respondent: |
Sparke Helmore
|
ORDERS
(1) That the application be
dismissed.
|
FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT
SYDNEY
|
SYG 2826 of 2007
Applicant
And
|
MINISTER FOR IMMIGRATION & CITIZENSHIP
|
First Respondent
Second Respondent
REASONS FOR JUDGMENT
Background
- This
is an application for review of a decision of the Refugee Review Tribunal handed
down on 16 August 2007 affirming a decision
of a delegate of the first
respondent not to grant the applicant a protection visa.
- The
applicant, a citizen of the People’s Republic of China, arrived in
Australia in October 2004 and applied for a protection
visa. The
application was refused and the applicant sought review by the Tribunal. The
Tribunal (T1) affirmed the delegate’s
decision on 21 October 2005.
The applicant sought review of that decision in the Federal Magistrates Court
and on 8 May 2006 the
Court made orders by consent remitting the matter to
the Tribunal for reconsideration according to law. The Tribunal as
reconstituted
(T2) affirmed the delegate’s decision on 31 August
2006. The applicant sought review of that decision in the Federal Magistrates
Court. On 22 February 2007 the Court again made consent orders remitting
the matter for reconsideration according to law.
- It
is the reconsideration by the Tribunal as reconstituted (the third Tribunal,
hereafter referred to as the Tribunal) that is the
subject of these proceedings.
The applicant attended hearings before each of the Tribunals.
- In
essence the applicant claimed to fear persecution arising out of the fact that
he had been involved in a land dispute with the
Chinese authorities after the
local government had taken away his land in 2003. He claimed he and others had
unsuccessfully tried
to bring these matters to the attention of higher
authorities. He also claimed that he and his wife had become involved in a
protest
in May 2004 and that he had fought with a policeman who had pushed his
wife too hard during the protest. He claimed that he had
been taken to the
police station and severely beaten by a group of police, detained overnight and
then released.
- At
various times in the course of review proceedings before T1,
T2 and the Tribunal the applicant elaborated and expanded on his
claims. In particular, at the first Tribunal hearing (and thereafter)
the
applicant made claims in connection with an abortion which he claimed his wife
had been forced to undergo in August 2004 when
she was eight months
pregnant. He also claimed the authorities then tried to force him to have a
sterilisation procedure and that
he would face a fine for default. He claimed
that the family home had been destroyed by the local government authority which
had
responsibility for enforcing China’s one child policy. He provided
supporting documentation in relation to these aspects of
his claims.
Subsequently, he claimed that his “political profile” caused
the authorities to be stricter in implementing the abortion and sterilisation
requirements.
The Tribunal decision
- In
its reasons for decision the Tribunal characterised the applicant’s claims
as a claim to fear persecution for reasons of
membership of a particular social
group and political opinion based on his views, shared with others, in relation
to a specific land
appropriation compensation matter and a claim to fear
persecution for reasons of membership of a particular social group relating
to
his and his wife’s claimed breach of the PRC family planning (“One
Child”) policy.
- The
Tribunal set out in detail the claims made by the applicant in connection with
his protection visa application, his elaboration
on his claims in relation to
the land dispute through the process of the Tribunal reviews, his additional
claims and the conduct
of each hearing.
- The
Tribunal recorded that it had raised issues of concern with the applicant about
matters such as discrepancies in his evidence,
his late claims about the arrest
of his brother in 2006, the lack of detail in his claims about a nexus between
his mother’s
death and his situation, whether there was a connection
between the land dispute and his claims about his wife’s abortion and
whether the authorities had any interest in taking action against him.
- The
Tribunal found that the applicant’s oral evidence about whether and how he
continued to agitate opposition to the land resumption
after the May 2004
protest and his overnight arrest at that time was evasive and
inconsistent. It observed that it “seemed odd” that
authorities seeking to punish a political dissident (as the applicant claimed to
be) with “an alleged capacity to detain a person on false
‘interference’ charges, would wait until [the
applicant’s] wife became pregnant to punish him for his
dissent”. It stated that the applicant’s evidence at the
hearing before it “did not appear to help to argue that there was any
connection between the claimed abortion/sterilisation issue and his claimed
political
profile.” It also recorded that it had discussed with the
applicant concern about his claim that the authorities were still pursuing
his
wife (despite releasing him in May 2004) and the fact that they had not
cancelled his passport or stopped him leaving the PRC.
- As
the Tribunal recorded, at the conclusion of the hearing on 27 April 2007,
it gave the applicant a letter pursuant to s.424A of the Migration Act 1958
(Cth) putting to him for comment the claims made in his protection visa
application and the fact that such claims omitted any reference
to his later
claims about China’s “One Child” policy, forced abortion and
forced sterilisation. This information
was said to be relevant as the lack of
reference to such matters in the protection visa application could give rise to
the view that
the claims were fabricated and such a significant negative
credibility finding could give rise to a negative credibility finding
on the
applicant’s claim overall. In response the applicant claimed that he had
told the person who assisted with his initial
protection visa application about
his wife being coerced into having an abortion and that he was ordered to
undergo sterilisation,
but that he had no idea what the person assisting him had
written as he had merely signed the protection visa application forms and
statements and that he could no longer contact this person.
- The
Tribunal outlined country information in relation to land resumption and
compensation relevant to the applicant’s claims.
- In
its findings and reasons the Tribunal found it was clear from the
applicant’s evidence that he had an underlying economic
motivation for
leaving the PRC before the time of the May 2004 protest after which he
claimed to have experienced harm. He had lost
the land on which he had depended
economically (through the 2003 land resumption by the authorities). The
Tribunal accepted that
he had found the compensation inadequate and had decided
to leave the PRC. It found that he had obtained his passport in
April 2004,
before he attracted any of the claimed harm beyond the loss of
land and that this economic motivation for coming to Australia preceded
the
claimed Convention-related motivations. However the Tribunal considered the
possibility that subsequent Convention-related factors
came into play.
- The
Tribunal considered the applicant’s claims about the land resumption and
compensation offered to him and to other villagers.
The Tribunal accepted that
the rural land held by the applicant and his fellow villagers which provided
their livelihood was resumed
by the local authorities. However it found no
basis for finding that the applicant and/or the other villagers were targeted
through
that process for Convention-related reasons. The Tribunal found that
the “evident objective” of the land resumption was consistent
with the objectives of land redevelopment projects occurring in the PRC at that
time
and thereafter.
- The
Tribunal also accepted that the applicant had been offered compensation as
claimed and that he and his fellow villagers considered
the amount offered to be
inadequate. It accepted that there was an element of discrimination in the
“argued slightness of the compensation offer” which exploited
the lack of education, negligible bargaining power, small number and peasant
background of the group of land
users in question.
- However
while the Tribunal acknowledged that persecution may involve discriminatory
conduct, it stated that “the presence of discrimination in an action
does not of itself make the action persecution”. It did not accept
that the compensation package offered to the applicant and his fellow villagers
“targeted the group for Convention-related reasons” or was in
any way indicative of persecution of the applicant and/or his fellow villagers.
In making these findings the Tribunal
gave weight to the law which left the
calculation of rural compensation packages to the relevant local authorities; to
the applicant’s
evidence that the compensation had been calculated
according to a formula based on matters such as land size, crop yield capacity
and allowing for a transitional period of lost income; and to the fact that
alternative accommodation had been offered and the applicant
and his fellow
villagers had been given urban household registrations. The Tribunal found that
this last factor was evidence of
the State being prepared to assist the
applicant and others “with the means of seeking employment in a rapidly
modernising environment”. On this evidence the Tribunal was satisfied
that the applicant and his fellow villagers “were not being forced by
the state or by parties acting with the tacit or active complicity of the
state into conditions denying them life, liberty, a capacity to subsist
or other relevant rights”.
- Hence,
while the Tribunal found that the ultimate package offered “might have
been minimal or mean, particularly for being non-negotiable”, it was
not satisfied that “alone or cumulatively” the land
resumption and farmer compensation initiative was within the definition of
persecution in ss.91R(1) and (2) of the Migration Act.
- The
Tribunal then addressed the applicant’s claims of retaliation by the local
authority against disaffected land occupants,
such as himself, who sought to
appeal to higher authorities in land resumption and compensation matters. It
noted that independent
evidence referred to occasional instances of local
authorities retaliating against such disaffected land occupants and that the
evidence
suggested that there were incentives for local authorities to
“misbehave” in this way. While the Tribunal considered that
there could be some argument that such retaliation might, in a particular
case,
amount to persecution for reasons of political opinion (as the applicant had
submitted), it found that in the applicant’s
case that there was
“absolutely no evidence before [it] to suggest that the
Applicant was harassed or harmed, let alone in any significant way, for
being a party to the process of petitioning higher authorities”. The
Tribunal found that while the applicant had claimed to the Department that those
who petitioned higher authorities “would be targeted” by
local authorities on return, in light of his later and more detailed evidence
about how he himself was treated, the Tribunal
gave this general statement about
what “would” happen, no weight.
- The
Tribunal referred to the applicant’s evidence to the effect that the
authorities did not react until he and the other villagers
had staged a sit-in
in May 2004 to obstruct commencement of a redevelopment project on the
resumed land. This was after they had
unsuccessfully appealed to the city
government, the State Land Resource Bureau and other officers and some months
after the compensation
deadline had passed. The Tribunal found it reasonable to
assume that the developers had a legitimate right to be on the land at
that
time. The applicant had claimed that during the sit-in the police moved in to
disperse the strikers and that the situation
got out of control. The Tribunal
could not see on the evidence before it that the police had attended on the day
of the protest
“for reasons other than to enforce an appropriate and
generally applicable law, allowing the project to proceed in conditions of
safety
and public order”. The Tribunal also had regard to the
applicant’s evidence that any harm by the authorities occurred after the
police
asked the protesters to vacate the land.
- It
addressed the applicant’s claim that the police had pushed his pregnant
wife “too hard”, but noted that they evidently let her go.
The Tribunal concluded that on the applicant’s evidence the police
violence
towards his wife was isolated and incidental to the situation at that
moment. The Tribunal stated that it made similar findings
about police
treatment of the applicant.
- The
applicant had claimed to T2 that he was detained over striking a policeman who
came too close to his wife during the attempt to
disperse the protest. He
claimed to the Tribunal that because he disagreed with the process of the land
resumption and outcome the
local authorities tried to detain him. He was
detained overnight by the police after the May 2004 protest and then
released. The
Tribunal had regard to the fact that the applicant said that he
fought with the police at the protest and hence was evidently violent
with them
(however selflessly motivated) on an occasion when “they evidently
had” a legitimate reason to be present and a legitimate right to
pursue.
- The
Tribunal found that “the individual police officers concerned then
acted in a way that blurs legitimate law enforcement with unreasonable forms
of
retaliation: they arrested him, held him overnight, lectured him about behaving
himself and, although they probably could have
charged him with some count of
assault or disturbance of public order, they let him go; at the same time, they
physically assaulted
him during the night of his detention, before they let him
go”.
- The
Tribunal accepted the applicant’s claim that this assault was a form of
persecution, but was not satisfied that it was Convention
related. It found on
the evidence before it that the violence the applicant suffered in overnight
detention was “an incident of criminal retaliation for something
he did” (being violent to the police in the course of the protest).
The Tribunal did not accept that the events of the May 2004 protest
and its
dispersal indicated a real chance of the applicant being persecuted in the
reasonably foreseeable future “because he was released the next day and
no further significant, relevant action was taken against him in relation to the
land resumption,
the compensation, the petitioning, or the protest; and because,
when the Tribunal tried to explore whether or not the Applicant continued
to
agitate or protest after the May 2004 episode, the Applicant gave inconsistent
and evasive responses”.
- In
making this finding the Tribunal gave weight to the fact that applicant was not
charged with offences that he said the police could
have fabricated against him
to mask political or other Convention-related repression and to his evidence
that he remained resident
in the vicinity of these local officials and at large
until he came to Australia, without being re-arrested. The Tribunal did not
give weight to the applicant’s unsupported claim that other persons
(leaders of the villagers) had been arrested and gaoled
for disturbing public
order. The Tribunal had regard to the fact that the applicant’s evidence
indicated that such a fate
did not befall him, even though he admitted that he
had hit a policeman at the May 2004 protest.
- The
applicant also claimed that his brother was arrested in July 2006 while
leading a protest at the site. He told the Tribunal that
his brother was still
in detention at the time of the Tribunal hearing (27 April 2007). The
Tribunal gave no weight to the applicant’s
evidence about the arrest of
his brother in 2006, finding that this was evidence about another individual
accused of acting in a
certain way on a specific occasion after the applicant
had left China. The Tribunal found that the fact that the applicant’s
brother had remained in China for so long and at large supported its conclusion
that the authorities did not regard the applicant
and the other villagers as
political opponents as such.
- The
Tribunal continued:
- The
evidence about the brother, whether it is genuine or not, reinforces the
Tribunal’s view that the authorities in this case
reacted when they did to
specific, individual, incidental actions, rather than to real or imputed
political opinions, or upon perceptions
about the Applicant and his fellow
villagers as a “particular social group”. The Tribunal does not
accept on the evidence
before it that the Applicant’s brother was, or was
perceived by the authorities to be advocating a cause associated in any
significant way with the Applicant, or that he was punished for reasons of his
association with the Applicant or that his alleged
treatment by the authorities
is indicative of the Applicant being persecuted for Convention-related reasons
in the event of return
to the PRC.
- The
Tribunal then considered the applicant’s claim that his wife (who had
remained in China) was ordered to have an abortion
due to local population
incentives and that his “political profile” caused the
authorities to be stricter in implementation of the abortion and sterilisation
requirements. He claimed that if
he had not attracted such a profile in the
land dispute his wife would not have been forced to have an abortion. The
Tribunal gave no weight to the applicant’s suggestion that the forced
abortion and sterilisation order were in any way related
to the land and
compensation dispute, considering it “fanciful” that in the
circumstances he described the authorities would have depended, or would have
needed to depend, on Family Planning officials
to punish the applicant for his
position in relation to the land and compensation dispute.
- The
Tribunal also addressed the applicant’s claims in relation to the death of
his mother the year before the decision. While
it accepted that the land
dispute may have exacerbated her age and health problems, it did not find that
her death added weight to
the applicant’s claims.
- Nor
did the Tribunal give any weight to the suggestion that the applicant’s
house had been demolished in connection with the
alleged second pregnancy of his
wife or his failure to submit for sterilisation as a form of punishment for
breaching the one child
policy. It found that the destruction of the
applicant’s home would have been a logical consequence of the resumption
of the
land by the Chinese authorities, having regard to the applicant’s
evidence that land clearing commenced in May 2004 and that
alternative
accommodation was offered to the villagers. The Tribunal did not accept that
the house was demolished in connection
with enforcement of the PRC’s
“One Child” policy and was not satisfied that there were any
Convention-related factors
relating to the destruction of the house.
- The
Tribunal did not accept that the applicant faced a real chance of persecution
arising from the land and compensation dispute.
Nor was it satisfied on the
evidence before it that his claims about the land and compensation dispute were
Convention related.
- In
considering the applicant’s claims in relation to his wife being forced to
have an abortion in August 2004 and a sterilisation
order, the Tribunal
noted that it had put to the applicant at the Tribunal hearing and under s.424A
of the Act its concern that the fact that his claim that the land dispute was
“so significant a reason” for the forced abortion, made it
“hard to conceive how the connection between the two facts was so
comprehensibly omitted from his protection visa application”. The
Tribunal addressed the applicant’s response that he told the person
assisting him of the claim about his wife
being coerced into having an abortion,
but was not satisfied that such significant claims, that were said to be
“so integrally related to the land dispute claims,” were
omitted from the original protection visa application due to the failure or
oversight of the person who assisted the
applicant with preparation of the
application as claimed. The Tribunal found that the omission was the
applicant’s omission
and that the claims did not appear in the protection
visa application “because the facts behind them did not in any way
contribute to genuine, subjective fear of significant, relevant harm on his
part”.
- The
Tribunal was of the view that the applicant “introduced” the
claims about an abortion and sterilisation order at the review stage in order to
add a Convention nexus to his protection visa
application. It considered that
while the applicant attached significance to those claims (in that he said he
left China when he
did because he fell into despair upon receiving the
sterilisation order dated 25 August 2004), this claim was undermined by his
evidence
to T2 that he had decided to leave China before the protest in
May 2004 and weakened by his repeated evidence to the Tribunal about
leaving China to find work. The Tribunal found that the evidence about the
abortion and sterilisation order did “not sit credibly and consistently
with other claims in the case”.
- The
Tribunal had regard to documents presented to T2 by the applicant in support of
his claims about the abortion and sterilisation
order, consisting of a
“Diagnosis Certificate” dated 24 August 2004 said to be
from a named hospital stating that a patient with the name of the
applicant’s wife had
been required to undergo an abortion and
sterilisation operation, that she had had the abortion but was
“diagnosed not suitable” for sterilisation and a
25 August 2004 “Notice” said to be from the County Birth
Control Administration Bureau requiring the applicant to undergo sterilisation
before 31
August 2004 or pay a fine and be responsible for “any
result caused” by default. The Tribunal found that notwithstanding
that the applicant had referred to these documents and his intention
of
obtaining and submitting them in his evidence to T1, they were not presented
until his case was before T2. The Tribunal gave
such documents no weight
because it did not accept that the applicant was credible in claiming that his
wife had suffered an abortion
or that he was ordered to undergo sterilisation.
- The
Tribunal gave weight to the fact that the authorities had issued the applicant
with a valid passport, refrained from cancelling
it for any reason and had
allowed him to retain it and use it to leave China legally. It found this
evidence of continued freedom
of movement added to its confidence in finding
that the applicant was not wanted by the authorities for the reasons claimed and
that
he would not be sought by them for any relevant reason in the reasonably
foreseeable future.
- Finally,
on the evidence before it the Tribunal gave no weight to the applicant’s
unsupported claims about the authorities having
accused him since he came to
Australia of betraying his country. The Tribunal was not satisfied that the
applicant faced a real
chance of Convention-related persecution in China and
found that his claimed fear of Convention-related persecution was not well
founded and that he was not a refugee.
- The
applicant sought review by application filed in this Court on 13 September
2007. He relies on four generally expressed and unparticularised
grounds. He
did not file written submissions before the hearing.
Non-refoulment
- The
first ground is “The Tribunal and the primary decision maker erred in
failing to recognize the principle of non-refoulment contained in Article 33
of
the 1951 Convention Relating to the Status of Refugees (the
Convention)”.
- The
decision of which review is sought in these proceedings is the Refugee Review
Tribunal decision. The applicant was not able to
elaborate on this ground in
oral submissions. Article 33(1) of the Refugees Convention imposes an
obligation on contracting states
not to expel or return a refugee to a territory
where his or her life or freedom would be threatened for a Convention reason.
However
in this instance the applicant was found not to be a refugee. Ground 1
appears to be misconceived and does not establish jurisdictional
error.
Bias
- Ground
two in the application is as follows:
- The
Tribunal and the primary decision maker erred in finding that a finding of a
lack of bona fides must necessarily be based upon
the Tribunal acting with a
closed mind or proceeding on the basis that it was seeking reasons to decide
against the application rather
than considering on the basis of all the evidence
put before it whether or not it could be satisfied of the applicant’s
claims
of refugee status and the Tribunal failed to consider whether any other
motives could ground a finding of lake (sic) of bona
fides.
- This
ground is not particularised. As expressed it appears to assert bias or
apprehended bias on the face of the Tribunal decision.
However as
von Doussa J stated in SCAA v Minister for Immigration &
Multicultural & Indigenous Affairs [2002] FCA 668 at [38]: “it
will be a rare and exceptional case where actual bias can be demonstrated solely
from the published reasons for decision” (and see SBBF v Minister
for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC
358 at [16] and Minister for Immigration and Multicultural Affairs v Jia
Legeng (2001) 205 CLR 507 at [71] – [72]). Such an allegation must be
“distinctly made and clearly proved” (Jia Legeng at
[69] per Gleeson CJ and Gummow J and at [127] per Kirby J).
- There
is nothing in the Tribunal reasons for decision to support an allegation of
actual bias arising from prejudgment. Rather, the
Tribunal reasons for
decision, in particular the Tribunal consideration of the applicant’s
claims and the evidence before it,
reveal that the Tribunal considered the
evidence and arguments presented by the applicant. The fact of adverse findings
by the Tribunal
does not give rise to an adverse inference as to the state of
mind of the decision-maker while the matter was under consideration
and does not
establish prejudgment (see SCAA at [38]).
- Nor
are the reasons for decision such as to establish apprehended bias in the sense
considered in Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 75 ALJR 982
(at [27]), from the perspective of the properly informed, fair-minded lay
observer. The Tribunal findings and conclusions, as set
out above, were open to
it on the material before it for the reasons it gave. It has not been
established that the Tribunal’s
fact-finding was conducted in a manner
which could result in a reasonable apprehension of bias in the sense of a
failure to bring
an impartial mind to the resolution of the question to be
decided. The Tribunal’s fact-finding was not unreasoned or mere
assertion
lacking reasoned foundation such as was considered in NADH of 2001 and Others
v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; (2004)
214 ALR 264 (and see SZEOQ v Minister for Immigration and Citizenship
[2008] FCA 257). It gave reasons in relation to its findings about the weight
to be given to supporting evidence (cf SZIEW v Minister for Immigration and
Citizenship and Another [2008] FCA 522; (2008) 101 ALD 295). The s.424A letter was not
expressed in terms indicative of a “closed mind” (cf SZKBE
v Minister for Immigration and Citizenship and Another [2008] FCA 317; (2008) 101 ALD 61).
- During
the hearing before me the applicant raised a number of concerns about the
conduct of the Tribunal hearing of 27 April 2007.
Despite the fact that he
had not filed a transcript of the Tribunal hearing in accordance with directions
made at the directions
hearing, he was given a further opportunity to do so and
to file written submissions identifying his concerns with the conduct of
that
hearing. The hearing was adjourned. Subsequently he was allowed an extension
of time and the hearing was further adjourned.
- Although
the solicitors for the first respondent had provided the applicant with a copy
of the relevant Tribunal hearing tapes, the
applicant sent the Court a copy of a
transcript of a different Tribunal hearing relating to another applicant with a
letter dated
13 July 2008. When informed of this, the applicant attributed
it to a mistake by the friend who assisted him. He was given further
time to
file and serve a copy of the transcript of the Tribunal hearing of 27 April
2007 in relation to his application. However
he then provided a transcript of
the hearing conducted by T1 together with a partial transcript of the very end
of the Tribunal hearing
of 27 April 2007. He sought and was granted
further time to provide a complete transcript of the hearing of 27 April
2007.
- Finally,
on 29 October 2008 the applicant filed a copy of the transcript of the
Tribunal hearing of 27 April 2007. In the accompanying
letter he did not
identify his concerns about the conduct of the hearing, beyond taking issue with
the Tribunal’s failure to
believe that he was persecuted due to his land
matter and the “One Child” policy. He also claimed that in 2007,
after
he reported the theft of his wallet to the Australian police, they had
sent him to the Chinese Consulate General who investigated
his personal
information. He claimed the official thought that he was a Falun Gong
practitioner and reported this to the local authorities
in China who seriously
harassed his wife and son. He also made other claims about what had occurred to
his wife and son in China.
Insofar as this may be an attempt to raise fresh
claims under the Refugees Convention these are not matters that can be addressed
by the Court in these proceedings, although they may be matters that the
applicant can raise with the Minister.
- The
first respondent made no written submissions in relation to the hearing
transcript. I have considered the transcript of the Tribunal
hearing in light
of the applicant’s contentions of bias and the claims he made about the
conduct of the Tribunal hearing when
the matter was before me.
- The
applicant submitted that the Tribunal had an “attitude” that
looked down on him and that it simply did not believe him or give him a fair
opportunity. He claimed the Tribunal member
used a tone or attitude that was
“quite despising” and “arrogant” when
assessing his case and that when he tried to answer questions he was interrupted
on quite a few occasions. He claimed
that at the hearing the Tribunal did not
go through all the procedural matters in the manner in which the earlier
hearings were conducted.
He also claimed that he was very emotional because his
mother had just passed away, but that he was refused a break when he asked
for
one. He claimed that he was denied a fair opportunity to express whatever he
wanted to say.
- There
is nothing in the transcript to indicate that the applicant sought a break, or
was interrupted on quite a few occasions. The
transcript does not support any
claim that the Tribunal failed to afford the applicant the opportunity required
under s.425. Nor is it such as to demonstrate actual or apprehended bias in the
manner in which the Tribunal conducted the hearing.
- It
is the case that the Tribunal did not provide a detailed explanation of the
conduct of the hearing or of the concept of “refugee” in the
Refugees Convention. The Tribunal member told the applicant that he was
“not going to give you a long introduction to the Tribunal because
you’ve appeared twice before the Tribunal. I’m just
going to remind
you that you’re about to give an undertaking to speak the truth to this
Tribunal at all times. And I do expect
you to honour that
undertaking” (transcript p.1). The Tribunal also checked that the
applicant understood the interpreter.
- In
the particular circumstances of this case, where the applicant had attended two
other Tribunal hearings, the absence of a detailed
introduction by the Tribunal
is not indicative of actual or apprehended bias. This is not a case in which it
appears that the applicant
misunderstood or may have misunderstood or been
unaware of the matters in issue under the Refugees Convention as had been
explained
at the earlier hearings. While it may be preferable for a Tribunal to
give such an explanation in all hearings, the absence of the
explanation is not
in this instance indicative of bias. It does not establish or suggest that the
Tribunal had predetermined the
matter. The Tribunal member subsequently
explained to the applicant that while the information he had given to the other
Tribunals
was before him, he must make an independent decision. The hearing
could not be described as cursory, the hearing record indicates
that the hearing
started at 10.00am and concluded at 11.50am.
- Relevantly,
the Tribunal raised with the applicant various issues of concern about his
claims, in particular about whether the land
dispute issue was Convention
related, its concerns about his credibility and the claimed connection between
the forced abortion and
his problems in relation to the land dispute.
- The
fact that it raised such issues, consistent with its obligations under s.425, is
not indicative of actual or apprehended bias (see SZBEL v Minister for
Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152).
As Sundberg J stated in Minister for Immigration and Citizenship v MZXPA
and Another [2008] FCA 185; (2008) 100 ALD 312 (at [14]) in relation to what a fair-minded
and informed person might reasonably apprehend:
- An informed
and instructed hypothetical person would also know that the Tribunal is an
inquisitorial body, and is not required uncritically
to accept an
applicant’s claims: Minister for Immigration and Ethnic Affairs v
Guo (1997) 191 CLR 559 at 596. It is required under the Act, in performing
its review function, to consider whether or not it is satisfied
that an
applicant meets the criteria for a protection visa. If not so satisfied, it must
refuse to grant the visa. ... The Tribunal
is accordingly required to assess the
probative value of evidence put before it by an applicant. Where the Tribunal
perceives weaknesses
in that evidence, it is entitled vigorously to test that
evidence: Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 at
[30].
- Indeed,
even if it could be said that the Tribunal had expressed a preliminary view
(either in the hearing or in the s.424A letter) this does not establish bias
(see MZXPA at [19] and SZDTU v Minister for Immigration and
Citizenship [2007] FCA 1135 at [8] per Finn J).
- It
is not apparent from the transcript that the applicant was not given a fair
opportunity to express what he wanted to say, such
as to indicate bias or a
reasonable apprehension of bias. The Tribunal did seek clarification of the
applicant’s responses
by further questioning on occasion, but there is no
indication that he was not given an opportunity to respond, or indeed, that the
Tribunal went beyond vigorous testing of the applicant’s claims as
considered in Ex parte H (at [30] – [31]). It is not apparent that
the applicant was overborne or intimidated (see Ex parte H at [31]). The
general concern he expressed about the “tone” or
“attitude” of the Tribunal questioning did not identify
specific aspects of the hearing. In that respect I note that “a mere
lack of nicety” does not establish bias (see SZGXT v Minister for
Immigration and Citizenship [2007] FCA 669 at [17]). In any event, as
Branson J suggested in Ling v Minister for Immigration &
Multicultural & Indigenous Affairs [2004] FCA 1069 (at [57]),
“a fair-minded person does not equate mere discourtesy with
bias”.
- Moreover,
while the Tribunal discussed with the applicant its concern about the absence of
forced abortion, sterilisation and “One
Child” policy claims in his
protection visa application, it also told him it would give him a further chance
to address these
matters of concern in response to a s.424A letter, so it would
not press him any further to discuss that issue in the hearing. The Tribunal
also advised the applicant that
he could make further submissions at any time
prior to the decision. Such conduct does not support a claim of bias.
- The
Tribunal also discussed with the applicant issues arising from documents
provided to it before the hearing by his adviser. One
of these documents was a
translation of a receipt for funeral expenses, said to be for the
applicant’s late mother. He claimed
in a written statement that after he
escaped to Australia, the local government haunted his home and
“obsessed” his wife and child, that his brother was detained
in July 2006 (a detention notice was provided) and two months later his
mother
“passed away under indignation at the injustice”. In those
circumstances it was open to the Tribunal to question the applicant about those
claims and the cause of his mother’s
death.
- I
note also that the applicant was given the opportunity (transcript page 10)
to add to what he said at the hearing and that he took
this opportunity.
Further matters raised in his evidence were addressed by the Tribunal and when
he asked if he could add more,
after the Tribunal said it had no more questions
(transcript page 11), the response was “Yes, sure”.
- The
applicant then reiterated that he had a fear of returning to China and claimed
that he was truthful. The Tribunal advised him
that it accepted his claim that
his land was resumed and that he (the applicant) considered the compensation
inadequate. Contrary
to any suggestion of predetermination the Tribunal also
advised that “The rest of the facts are matters that I still have to
consider” (transcript page 12).
- The
Tribunal member then advised that he was going to close the hearing soon.
However he allowed the applicant to continue speaking.
The applicant then
stated (transcript page 12):
- Applicant: Well
maybe what I’m going to say has nothing much to do with my application
–
- Tribunal
Member: Well – yeah, okay.
- Applicant: --but
I don’t even fear that now and – but I think my death should have
some meaning. But my religion doesn’t
allow me to do so –
- Tribunal
Member: Okay, you’re talking about suicidal feelings? Okay, I can’t
protect you from persecuting yourself,
if you know what I mean. I can’t
protect you from harming yourself. That’s a matter for you to discuss
with other professionals.
- Applicant: I
just want to donate an organ and I want to through the Red Cross to let the
world know what I told was true.
- Tribunal
Member: M’mm. I’ve noted that. It’s not relevant to your
case and I’ll ask you now with respect
not – maybe to resist or
think twice before raising things that you don’t think are relevant to
your case. Okay, but
as I said, you can say anything in further submissions to
this Tribunal before the handing down. I certainly don’t want to
instruct
you not to say this or not to say that, but ... think before you make any
further submissions, particularly the ones where
you think they’re not
relevant to your case.
- Now
I’m going to close the hearing now. And I just remind you that you have
until 11 May to respond to that letter, but you
have ... until the handing down
day to make further submissions in this matter. If you’re thinking about
self-harm, please
the first thing you should do after this hearing is maybe go
and talk to your preacher or to some other competent person to listen
to you and
give you some comfort.
- If
it’s any help to you, I will consider the last piece of information you
have me as a claim on your part that you have a
heartfelt fear of being
persecuted by the Chinese and you’d rather take some other path than be
persecuted by the authorities
in China. Can I just ask you one more question?
How did you raise funds for your travel, who did you borrow money
from?
This exchange is not indicative or suggestive of
bias. While the Tribunal did indicate that the applicant was raising matters
not
relevant to his case, the manner in which this was done is not such as to
suggest that the Tribunal had, or appeared to have, a closed
mind on the
applicant’s refugee claims.
- There
followed, (transcript page 13), a discussion of the fact that the applicant
owed money to people in China. The following exchange
(transcript pages 12
- 13) contains what the Tribunal acknowledged was an interruption of the
applicant. However considered in context
this is clearly an attempt to return
the applicant to a discussion of relevant issues:
- Applicant: I
had a motor vehicle for the farm purpose, you know.
- Tribunal
Member: And you sold it and that was enough to get here?
- Applicant: Yeah,
I sold the car and also borrowed money from others.
- Tribunal
Member: Okay, and you still haven’t finished paying the loan?
- Applicant: No,
I haven’t started to pay it back yet.
- Tribunal
Member: And what if you return to China without having repaid the loan?
- Applicant: Well,
I think if I donate a kidney and told people my situation and I think some
people will do something for me.
- Tribunal
Member: Are you saying that the people who lent you the money are very
strict?
- Applicant: Well,
no, last time I talked to my wife in the phone and I told her to forget me
because all I bring to her is an abnormal
life. I also told her my idea of the
donation of the kidney and I think the person who will benefit from me would do
something for
me.
- Tribunal
Member: Now, but are you saying that by donating a kidney you would be able to
raise funds to repay your lender? Okay, you
said no, fine I’ll just leave
it at that for the moment. I’m interrupting you I know, but I have to go
back to an earlier
question that we don’t have answered. Okay,
[applicant], the people who lent you the money, you haven’t repaid
them. Will they be strict about your non-repayment? It’s really
a yes/no
question, will they be strict about your failure to repay? Forget the kidney
for a moment and focus on the lenders. Are
they strict about getting their
money back?
- Applicant: No,
they won’t.
- Tribunal
Member: Well, why are you talking about maybe you can relieve the situation by
donating a kidney? I mean, you are talking
about a – some problem there.
Did you money from a loan broker of some kind?
- Applicant: No.
That’s my own idea to donate my kidney and through the person who benefit
from it to let the world know what
happened on me.
- Tribunal
Member: But you’re distracting us from the question I’m asking you,
I’m asking you about the loan, the
money. Let’s just forget the
kidney now, please. Let’s just not discuss it for a few minutes.
You’ve borrowed
money from somebody and you haven’t started to repay
them, who are these people and what are their requirements?
- Applicant: My
brother-in-law is like the younger brother of my wife. And my elder
brother.
- Tribunal
Member: And what would happen to you if you get back to China and you
haven’t repaid – [end of tape 1] –
- It
appears that there may be a gap in the transcription, as the transcript
continues (transcript pages 13 – 14):
- Mem: ...
understand that sometimes these hearings are a bit rigorous, we have to go
through the facts. And let me remind you that
if you’re having any dark
thoughts, discuss these with competent people, counsellors, preachers, priests,
friends. Don’t
fester in silence about them. Okay, we’ll close the
hearing.
- The
Tribunal’s attempt to obtain a response from the applicant to an
unanswered question and to return to issues of relevance
to the application is
not indicative of bias.
- Neither
actual nor apprehended bias is made out having regard to the conduct of the
hearing, the reasons for decision and the other
material before the Court.
- Further,
the applicant’s general contention of bias on the basis that the Tribunal
failed to consider all of the evidence put
before it is not made out. Rather,
it is apparent that the Tribunal engaged in a detailed consideration of the
integers of the applicant’s
claims as made at various times. In relation
to the hearing the transcript reveals that the Tribunal raised issues of concern
with
the applicant, but not that this was done in such a manner as to give rise
to an apprehension of prejudice or a lack of impartiality
from the perspective
of the hypothetical lay observer properly informed as to the nature of the
proceedings and the matters in issue.
The Tribunal was entitled (and indeed
required by s.425) to raise dispositive issues with the applicant to test his
claims. The evidence before the Court does not establish apprehended
or actual
bias. Insofar as ground two seeks merits review, merits review is not available
in this Court. No jurisdictional error
is established on the basis contended
for in this ground.
Credit finding
- The
third ground is that the Tribunal and primary decision-maker “erred in
finding that the general attack on the applicant’s credit as an element of
a failure to make a bona fide consideration
of the application (sic).”
This application is for review of the Tribunal decision. Insofar as this ground
also seeks to raise contentions of
actual or apprehended bias, for the reasons
considered in relation to ground two, it is not made out. Moreover this is not
a case
in which the Tribunal made a “general attack” on the
applicant’s credit. The Tribunal accepted significant aspects of what the
applicant claimed had occurred to
him in China, particularly in relation to the
land resumption and compensation issue. However it was not satisfied that he
had suffered
or had a well-founded fear of persecution for a Convention-related
reason arising out of such events and the subsequent incidents
including the
protests.
- It
is the case that the Tribunal gave no weight to certain aspects of the evidence
in this and other respects. However in so doing
it gave reasons for its
conclusions and for its preference for other aspects of the evidence before it.
Insofar as the Tribunal
made adverse credibility findings in relation to aspects
of the applicant’s claims (in particular his claim that his wife suffered
an abortion and that he was ordered to undergo sterilisation and that this was
associated with the land dispute issue), credibility
findings are a matter for
the Tribunal par excellence (Re Minister for Immigration and
Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405
at [67] per McHugh J). The Tribunal gave reasons for its findings
based on the evidence before it which were open to it for the reasons
which it
gave. A fair reading of the Tribunal’s reasons for decision does not
support the contention that there was a failure
by the Tribunal to make a
bona fide consideration of the application. Ground three is not made
out.
Construction of the Act
- The
final ground in the application is that the “Tribunal member and the
primary decision maker erred in its construction of the Migration Regulation
1958 (the Act) Part 8 (sic)”. Again this ground was unparticularised
and there is no evidence to support it. Part 8 of the Migration Act contains
provisions relating to judicial review and the privative clause. To that extent
this ground is not comprehensible, although
it may be intended to allege
generally that the Tribunal fell into jurisdictional error.
- If
this is intended to be a suggestion that the Tribunal failed to observe
procedures under the Migration Act, the Tribunal wrote to the applicant pursuant
to s.424A of the Act inviting him to comment on the omission from his protection
visa application of his claims in relation to forced abortion
and the order to
undergo sterilisation. Insofar as omissions can constitute information for the
purposes of s.424A of the Act (see the discussion in Minister for Immigration
and Citizenship v Applicant A125 of 2003 and Another [2007] FCAFC 162; (2007) 163 FCR 285) it
met its obligations in that respect. I note further that the Tribunal took into
account the applicant’s response to the
s.424A letter.
- The
detailed account in the Tribunal reasons for decision of the three Tribunal
hearings attended by the applicant and the evidence
provided by him, including
the transcript of the Tribunal hearing, does not support any claim of a failure
to comply with s.425 of the Act. Ground four is not made out.
- As
no jurisdictional error has been established the application must be dismissed.
I certify that the preceding sixty-nine (69) paragraphs are a
true copy of the reasons for judgment of Barnes FM
Associate:
Date: 6 February 2009
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